Saturday, May 22, 2010

Interstate Commerce Muddles

Tibor R. Machan

In America most of the mild and Draconian intrusions in people's economic lives are legally justified by the interstate commerce clause of the U. S. Constitution--Article I, Section 8 in particular. "Congress shall have power...[t]o regulate commerce with foreign nations, among the several States, and with the Indian tribes...." (Another source is the arcane police power of governments!)

The best interpretation of this power has never been uncontroversial. Some argue it could mean virtual Stalinist powers by Congress over the economy of the nation; some say it means only that Congress is authorized to regularize commerce, make all of the states conform to the principles of free market economics (instead of the mishmash of protectionism that was in place before the establishment of the country).

In recent times the former interpretation has prevailed in the courts, so now Congress is taken to be in charge of any economic activity that crosses state borders or even the sort that has a more impact on commerce is neighboring states!

Does this make any sense? Not for free adult men and women, not in a free country. In such a country Congress would not be regulating commerce of any kind since that entails regimenting the economic activities of the citizenry and no one has the basic, natural, human individual right to do that. Congress isn't God or even king! Congress exists so as to secure our rights, period, just as the Declaration of Independence states. Anything more is dictatorship, even if only of the majority of the country's voters over the rest of us. In a free country no such dictatorship is justified. Democracy isn't any excuse for regimenting the minority's lives by the majority. Democracy pertains, in a bona fide free country, to applying the basic laws of the land to new areas of life (say, the Internet). But always consistent with the basic (constitutional) principles of the country, never in contradiction to them. (If judicial review is a valid activity of the country's courts, the courts must strike down any effort by majorities to violate individual rights!)

Why is it that the federal government has the legal power to tell citizens with whom they must do business? Because of the interstate commerce clause. And that is all wrong. No such power of Congress or any other political body may be authorized over the choices of free adult men and women. Such men and women, citizens of a free country, have the right to decide for themselves with whom they will do business and not be regimented by a bunch of their fellow citizens! Of course, they must also follow through on commitments they make in the process, such as when they enter into contractual relations with their fellows. And sometimes such relations are entered into implicitly, not overtly, as when a citizen opens a store, shop, or restaurant--any place of business--"to the public," meaning to anyone in the market for doing business with him or her (who behaves in a civilized fashion).

So if one invites people to do business, one may only restrict or qualify the invitation ahead of time and must be fully disclosed. If I don't want to admit married men or women into my store, this must be something people can learn before they enter the store. This is like the restrictions on who may join a club or religious order. No one married may become member of the Roman Catholic clergy, and this is made clear up front and everyone must live with it even if it is a silly requirement. Some such requirements are not silly, such as requiring that only men come to do business in one's barbershop or medical clinic. Similarly, if one makes clear, up front, that one will not do business with blacks or women or very tall or very short people, this is something--be it an ethical or unethical practice--that must be declared up front, not once someone enters to conduct business or to seek a job being on offer. That is because opening an establishment without specifying the restrictions implies the absence of restrictions by the reasonable person standard of (common) law.

In a free country the right of freedom of association must be fully protected. But, also, once it is announced that one will do business with any civilized potential customer, that too must be protected from any arbitrary breach. The fact that America's Constitution permits Congress to ignore this just shows how far the country needs to go to become a truly free and just society.

Friday, May 21, 2010

Dealing with Racists in a Free Market

Tibor R. Machan

Finally, in the Rand Paul furor we have an issue in politics worthy of sustained, serious attention--How should people who act badly be dealt with? More particularly how should people who discriminate based on irrelevancies such as race, sex, national origin, physical impediments, etc., be treated? Should they be punished and forced to do the right thing? Should they be ignored and left to rot with their evil souls. Should they be ostracized and boycotted?

Since free men and women may not be forced to stop doing the wrong thing unless it involves violating other people's rights, there are limits to what may be done to them. Sadly this point is often overlooked by even the most earnest reformers who want to make others good. It cannot be done and may not be tried with violence, coercively. Human goodness must come from the heart, as it were, voluntarily. Otherwise it isn't really goodness. At most it could amount to being well enough behaved, like a child whom parents threaten to punish for misconduct.

But there are also many, many options available to respond to misconduct that has an impact on others without quite violating their rights. Strictly speaking no one's rights are violated when one discriminates against them without a valid reason, say for being black or a woman or coming from Somalia. No one is owed patronage from anyone--I don't have to buy something from you even if you are selling it at a good price and it is a fine product or service. Such an interaction, too, must be voluntary on both sides. And even if I invoke stupid reasons for avoiding dealing with you, you aren't due anything from me except, perhaps, an apology for my oversight.

In a free market place, however, when you enter it and do not state any preconditions others must meet to deal with you--to eat at your restaurant, shop at your store, rent a room at your motel, go watch a game at your stadium--you are extending an offer to anyone who can pay and behaves in a civilized fashion. But if certain prerequisites are in play, you can restrict those with who you will do business, provided these are fully disclosed and people considering doing business with you can find out before they enter your premises. That is the reasonable understanding of one's going into business, opening a store or shop or eatery. No irrelevant criteria can stand in the way of commencing business, not unless these are stated up front.

This would mean that if one wants to exclude blacks or whites or women or some other identifiable group of customers or traders from engaging in trade with one, that condition would have to be knowable to any prospective customer. Many institutions operate this way already--no women are allowed into the Roman Catholic priesthood; a bridge or ping-pong or bowling club or tennis tournament requires certain qualifications from those who would join it. And while these may be valid, sometimes they aren't--is it really valid for Roman Catholics to have their policy of celibacy for the clergy or mightn't it really be an insidious thing after all, once closely considered? But in a free society what matters is that they choose to have that practice and it doesn't violate anyone's rights--no one has a right to become a member of the RC clergy unless admitted by the RC administration.

If, however, you go on record with offering your goods and services for trade without specifying any conditions, you would be violating an implicit promise--understood by the reasonable person standard--to people whom you would bar from this. And that could be legally actionable.

Moreover, if you did make an announcement, such as "No blacks or women or 7 feet tall people served here," you would alienate a great many potential customers and so it is not like that anyone with a modicum of rationality will try to do business that way. Still, one could. And that is what freedom means, among other things, that you can be an ass so long as you do it peacefully.

Thursday, May 20, 2010

Freedom of Association and Rights

Tibor R. Machan

A big flaw of the famous 1964 Civil Rights law is that it engages in regimenting who may or must associate with whom in private commerce. Among free men and women no such regimentation by government is permissible even if, to quote one prominent Republican "it is the law of the land." So is the war on drugs, so used to be laws mandating segregation. Saying something is the law of the land settles nothing at all about whether it should be the law of the land.

We are here not talking about whether those engaged in private commerce ought to do so without racial prejudice. Of course they should. It is immoral to hold it against someone that he or she is of a certain race, for the simple reason that no one has a choice about his or her race. Being black or white or yellow or whatever race or color isn't either a liability or asset for a human being, any more than being short or tall or a male or a female could be. For some limited purposes it may matter whether one is tall or short--basketball or riding in horse races. But for nearly all other purposes for which people may interact, their race and color are of no significance at all.

Those, however, who think otherwise have a right to do so. Not a legal right, as things now stand in America, but a basic natural-moral right. Which is't the same as their being right or correct in how they think or act. But freedom entails the right of people to engage in malpractice, both personal and professional. Otherwise one simply isn't free.

Just compare this to freedom of the press--it means, among other things, that one may not be stopped from speaking and writing morally objectionable material. Those who think otherwise believe in censorship as does Egyptian President Hosni Mubarak, who said at one time that "There are freedoms, but they can't contradict our traditions; we must guarantee that freedom of expression agrees with our values." [From in Christian Science Monitor]

Those who support banning of racial and other immoral discrimination in commerce or elsewhere also believe that the government must guaranteed that freedom of association agrees with certain values. And those values may well be correct. That isn't the issue here. What is the issue is that when one makes immoral choices about who to interact with and whom to ostracize, this is not open to be banned, not among free men and women.

This issue is timely now that Democrats and mainstream Republicans have finally found something with which to demonize Rand Paul, the libertarian Republican who pulled off a win in Tuesday's primary election in Kentucky. When Californians attempted to resist federal regimentation of their associations with fellow Americans back in 1964, U. S. Supreme Court Justice Byron White helped cancel their efforts, arguing as follows:

The right to discriminate, including the right to discriminate on racial grounds, [would have been] embodied in the state's basic charter, immune from legislative, executive, or judicial regulation at any level of the state government [had Proposition 14 (Art. I, Sec. 26) not be held unconstitutional].

Justice White explained that the California law enacted via Proposition 14 "authorized private discrimination," even though only "encouraging, rather than commanding" it. But what of it? All sorts of bad behavior is authorized on the part of free men and women--their very possibly bad choice of religion, political affiliation, and bad personal choices of all kinds. That is exactly what is entailed in the notion of a right—its exercise, wisely or unwisely, is shielded from others' interference. Justice White made this evident, albeit disapprovingly, in the following observation: “Those practicing racial discrimination need no longer rely solely on their personal choice. They could now invoke express constitutional authority, free from censure or interference of any kind from official source". (But how could one freely make a personal choice to discriminate if government has the legitimate power to stop one from doing so?)

Yes, in America, which is now a full blown Nanny State, bad behavior on the part of adults is dealt with by governments as parents are authorized to deal with bad behavior on the part of their children. And Mr. Paul opposes this, to his credit.

Tuesday, May 18, 2010

Charles Krauthammer's Fallacy

Tibor R. Machan

In a recent discussion about the war on drugs Charles Krauthammer, the most avidly conservative columnist in the nation's capital (and who writes for The Washington Post), defended the war by comparing the abuses associated with it--such as police raids on homes where no drugs are found--with abuses associated with raids aimed at car thieves when no stolen cars are found. But the comparison is utterly misconceived.

Chop shops, at which stolen cars are stored and reworked and then sold, are criminal operations because they are the fruits of grand theft auto! That is to say, the crime has clear cut victims whose property was stolen and when mistakes are made in the prosecution of such crimes they are not committed in the pursuit of innocent individuals. Sure, even when guilty parties are being pursued mistakes can occur but unless these are committed maliciously, they can be excused.

Pursuing drug offenders involves prosecuting people who have engaged in entirely victimless crimes. Sure, sometimes drug offenders are involved in criminal activities, but these have nothing to do with the sale or consumption of drugs. They have to do with breaking and entering, for example, so as to steal money or other valuables that can be used to purchase drugs. Those crimes, however, are independent of drug use itself. They are, instead, related to the prohibition of such use.

Drug use can be a very hazardous activity, just as gambling or mountain climbing can be. People sometimes become addicted to drugs as they can be to gambling or other hazardous activities. But in principle people can get addicted to nearly anything--in the famous movie The Days of Wine and Roses Jack Lemmon's and Lee Remick's characters become addicted to bon-bons before they turn into alcoholics. Such afflictions of people have nothing to do with victimizing anyone--they are what can be seen as self-regarding misconduct, like imprudent spending, overeating or other types of recklessness.

In free and civilized societies self-regarding misconduct may not be made into crimes. The most famous political philosopher associated with America's political tradition, the English political economist John Stuart Mill, insisted that only when someone engages in conduct that's harmful to other people can he or she be interfered with by the police. That is indeed the original meaning of liberalism--people are to be treated as free individuals unless they aggress on other people.

The fact that some drug users--and they are few and far between apart from those who try to evade the war on drugs in societies where there is official drug prohibition--misbehave under the influence of drugs is irrelevant. Anything can influence people's conduct and some such conduct can turn out to be aggressive. But it need not. And that is the difference between what must be made criminal and what must not be made criminal.

I will not even dwell on the obvious inconsistency of making drug abuse illegal while leaving alcohol and other types of abuse legal. It is, in point of fact, all part of the Nanny State mentality which, interestingly enough, the likes of Charles Krauthammer roundly condemn when it comes to welfare policies but seem not to mind when it comes to dealing with drug abusers who are adult human beings while they are treated like children or invalids.

Nor will I spend time on discussing the controversy over the very idea of drug addiction. There are others who have done a very fine job debunking the abuses perpetrated in the name of this idea--e.g., Thomas Szasz. I merely want to alert readers to the fact that the likes of Charles Krauthammer are just as willing to take over people's lives and rule it for them regarding their use of drugs as the likes of Keynesian economist Paul Krugman do when it comes to people's economic activities. Which confirms just how widespread the impulse is to rule other people, both from the Right and the Left. Neither shows much confidence in human beings--what is odd is that they do show confidence in the most dangerous human beings, governments, who hold guns in their hands.
NYTimes' Magazine Hides Sunstein

Tibor R. Machan

On Sunday, May 16th, The New York Times Magazine ran what amounts to a puff piece about Harvard Law Professor Cass Sunstein, President Obama's long time friend, former colleague, and current regulation czar. It was penned by Benjamin Wallace-Wells, who is identified as "a contributing writer for the magazine and a contributing editor for Rolling Stone" magazine.

The essay is a decent enough account of Sunstein's career and personal life but the only idea it focuses upon in his repertoire of significant and controversial ideas is "nudging" or "libertarian paternalism." This is the belief in a system of government regulations that amount to creating government incentives for people to do the right thing (as per how the government or Professor Sunstein see it, of course). Instead of coming down on what government considers objectionable or undesired human conduct with a sledge hammer, nudging works by setting up various tricks by which people are lead to act in the way the government intends for them to act.

Call it behavior modification or libertarian paternalism, the gist of Sunstein's type of government meddling in people's lives is to use a kind of Skinnerian program of stimulus-response (after the late Harvard behaviorist psychologist, B. F. Skinner), whereby what government officials want the citizens to do isn't commanded but made the result of various more or less subtle prompters. Although Sunstein and his collaborators prefer the term "nudging," it is a misleading idea since if it involved no more than than, one could just sidestep it. Suppose my neighbor wants his guests to stop wearing shoes in his home, so he leaves bits and pieces of suggestions to you as you enter it that leads you to take off your shoes and proceed into the home in your socks. OK, but you need not visit him in the first place. So when you realize you are being manipulated into doing stuff you don't want to do--say you don't particularly like showing people the condition of your socks--you can just not enter or take some other evasive action. There are numerous such situations in our lives, when those with whom we interact desire for us to act in certain ways and we can either comply or opt out.

With so called nudging, however, we are ultimately being forced to comply with how the government wants us to behave. There is no escape. If we don't go along, we could end up fined or even sent to jail. That is why it is called paternalism, since the government acts as would parents act toward their children who have full authority over them. The "libertarian" part is a ruse--it comes from the fact that government tries to keep the citizenry in the dark about what it is doing, making it appear that one is making one's own choices when one isn't really.

Anyway, this idea is almost the only one associated with Cass Sunstein and with what he is supposed to be contributing to the Obama regime. The article does mention that he has urged government to go to court in support of animal rights but what it failed to do is mention Professor Sunstein's most dangerous and vile idea, namely, that government is the source of our basic rights.

In the American tradition of law and politics, the foundation of these come from human nature. That is what the Declaration of Independence points out, namely, that we have equal rights to life, liberty and the pursuit of happiness--among others--because of our human nature. They are unalienable so long as we remain human!

What Professor Sunstein and his co-author Stephen Holmes claimed, in their 1999 book, The Cost of Rights: Why Liberty Depends on Taxes, is that “individual rights and freedoms depend fundamentally on vigorous state action” and “Statelessness means rightlessness.” This is the pre-revolutionary, pre-Lockean--and pre-Jeffersonian--idea that governments grant us rights; that there are no natural rights but mere privileges we get from government which can also promptly take them away. It isn't just the protection of our rights for which government is needed but their very existence is due to government as Sunstein & Co. see things! Instead of the citizens having rights that government is instituted to secure, all governments, like monarch, czars, dictators and such, give people rights, which they can promptly take away at their discretion.

That such a reactionary view should be held by the foremost legal mind in the Obama administration is worth full disclosure and exploration, something The New York Times Magazine essay failed to do. Never mind nudging or animal "rights"--those are small potatoes. What matters far more is that Sunstein and Co. believe the thoroughly anti-libertarian notion that government is the source of law and rights, not their administrator and protector, respectively.